TL;DR: It's baaaack.... Earlier today the FTC announced it will be seeking public comment on an Advance Notice of Proposed Rulemaking (ANPRM) on the Use of Prenotification Negative Option Plans Rule (aka Negative Option Rule or NOR). The ANPRM does not propose a new rule at this time, but instead seeks comment on (i) the ongoing need for the current NOR and whether it needs to be amended, (ii) certain aspects of the prior administration's revision of the NOR that was vacated last summer by the 8th Cir. (aka "Click to Cancel Rule"), and (iii) whether and which industries should be exempt from the Rule. The ANPRM will be published in the Federal Register in the near future (FTC speak for "who knows when") and comments must be submitted within 30 days of publication.
How We Got Here
On January 30, 2026, the FTC announced it had submitted a draft ANPRM on the NOR to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget for review and approval, in compliance with Executive Order 14215 requiring all proposed “significant regulatory actions” to be approved by the OIRA before being published in the Federal Register. We attempted to track the progress of OIRA's review since then, but given the cut in federal agency funding, these resources were not available to the public. But on this, the 11th of March, we surmise that OIRA approved the ANPRM, thereby greenlighting its publication in the FR, date TBD.
For even more background, as you may recall, the reason for the FTC even submitting an ANPRM for comment now is the 8th Circuit's vacating the prior administration's Click to Cancel rule last summer as we reported here, for failing to conduct a preliminary regulatory analysis required under section 22 of the FTC Act, 15 U.S.C. 57b-3(b)(1). So now...Round 2!
As for the substance of the ANPRM, the FTC spends half the 32 page notice providing background on the NOR, reporting on purported ongoing issues with negative option offers, concerns with current regulatory enforcement tools, and the procedural posture to date. The actual request for comment begins on p.16, seeking comment on the current NOR, on certain (not all) aspects of the now-vacated Click to Cancel Rule on page 25, and interestingly, on page 29, on whether and which industries should be exempt from the Rule.
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